Gujarat High Court
Pankajbhai Ghanshyambhai Joshi vs Dinesh Mohanbhai Patel on 10 January, 2024
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R/CR.A/1515/2023 JUDGMENT DATED: 10/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1515 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PANKAJBHAI GHANSHYAMBHAI JOSHI
Versus
DINESH MOHANBHAI PATEL
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Appearance:
MR VINOD M GAMARA(5910) for the Appellant(s) No. 1
NILESH J GOSAI(7325) for the Appellant(s) No. 1
MS MEENA VYAS(3315) for the Opponent(s)/Respondent(s) No. 1
MS MONALI H. BHATT, APP for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 10/01/2024
ORAL JUDGMENT
1. This is an appeal filed by the appellant - original
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complainant under Section-378 of the Cr.P.C. challenging the
judgment and order dated 29.12.2021 passed below Exh.1 by
the learned 8th Additional Civil Judge and Judicial Magistrate
First Class, Ahmedabad Rural in Criminal Case No.3115 of
2016, wherein, the learned trial Court had dismissed the
complaint, which was filed under Section-138 of N.I. Act, for
non-prosecution by exercising power under Section-256 of the
Cr.P.C.
2. It is the case of the complainant that the complainant is
doing the business in the name and style of 'Dave Decorators'.
The respondent - accused is organizing the musical
programme and as there was one programme was arranged
by the respondent - accused at Sardar Patel Stadium on
25.01.2004, the respondent - accused had given contract to
the appellant for arrangement of the stage, decoration,
materials like chair and other articles. An amount of
Rs.3,50,000/- was fixed with the complainant for providing the
said articles in the programme organized by the respondent-
accused. At the time of supplying of the articles, an amount of
Rs.75,000/- was paid through cheque and thereafter,
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Rs.25,000/- was paid through cheque by the respondent -
accused to the complainant. It is the case of the complainant
that for the remaining amount i.e.Rs.2,50,000/-, the
respondent - accused issued a cheque for an amount of
Rs.1,50,000/- and gave an assurance that as and when the
cheque is to be deposited in the bank, the same would be
honoured. The respondent - accused had further given an
assurance that the remaining amount of Rs.1,00,000/- would
be given after some time. The cheque, which was given, was
sent for clearance with the bank, which was returned with an
endorsement of 'insufficient fund' on 17.07.2004.
3. On receiving the return memo, a demand notice was
issued and after following the procedure prescribed under the
N.I. Act, a private complaint came to be filed being Criminal
Case No.1189 of 2004. Thereafter, as there was establishment
of the Special Court for the purpose of conducting the cases
instituted under the N.I. Act, the criminal case was
transferred to the learned 29th Metropolitan Magistrate Court,
Ahmedabad and was registered as Criminal Case No.1799 of
2008. That again in the year 2015, there was amendment in
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the N.I. Act, and therefore, it was transferred to the learned
Additional Civil Judge and J.M.F.C., Ahmedabad (Rural) and
again it was re-numbered as Criminal Case No.3115 of 2016.
The summons came to be issued to the respondent - accused,
which was remained unserved and therefore, vide order dated
09.03.2019, the case was sent to the dormant file with
direction that it would be kept on the board after six months
from the date of order of dormant file. Again the summons
was issued to the respondent - accused and to the
complainant on 16.10.2021, however, it was not served to the
complainant as incorrect address was provided in the
complaint. The matter was thereafter kept on 18.12.2021. On
that day also, neither the complainant nor his learned
advocate remained present and it was kept on 29.12.2021 for
further proceedings. On the said day, again neither the
complainant nor his learned advocate was present nor the
accused was present and therefore, the order was passed by
the learned trial Court dismissing the complaint for want of
prosecution, which is impugned before this Court.
4. Heard Mr. Vinod Gamara, learned advocate for the
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appellant; Ms. Meena Vyas, learned advocate for the
respondent no.1 - accused and Ms. Monali H. Bhatt, learned
APP for the respondent no.2 - State.
5. Mr. Vinod Gamara, learned advocate for the appellant
submits that after the complaint was dismissed, the
restoration application was preferred by the complainant on
29.03.2022, which was rejected by the learned Chief
Additional Judicial Magistrate on 07.06.2022 on the ground
that the learned Court has no power to restore the criminal
case after it was dismissed. Against the aforesaid order, the
complainant had filed the revision application before the
learned Sessions Court being a Criminal Revision Application
No.18 of 2023 alongwith the delay application, in which, the
learned Sessions Court had allowed the delay application and
dismissed the Criminal Revision Application on the ground
that against the order of acquittal, the appeal is maintainable
before the High Court and therefore, the Criminal Revision
Application is not maintainable and therefore, the same was
dismissed on 22.02.2023. Learned advocate further submits
that after the order passed for sending the case as dormant
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file, the matter was listed for the first time on 16.10.2021 and
on that day, the complainant was not present as he was not
having the knowledge with regard to the date of listing the
complaint on board. Learned advocate further submits that
thereafter, once the matter was adjourned and immediately
thereafter, dismissed vide order dated 29.12.2021 without
considering the fact that the criminal case was at the stage of
service of summons to the respondent - accused. Learned
advocate submits that the learned trial Court ought to have
issued the fresh summons or notice to the accused instead of
dismissing the matter on technical ground as it was not the
case that the accused was appearing and the complainant was
not present. Therefore, at this stage, even if the complainant
was not present, then also, the learned trial Court could have
proceeded the matter and should have issued the summons
and warrant to the respondent - accused also. Learned
advocate further submits that due to the dismissal of the
complaint, which was filed in the year 2004, the complainant
left remedy-less as the cases pertaining to the N.I. Act are
time barred litigation and therefore, there is no other remedy
to recover the amount of cheque. In view of the above, the
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learned advocate submits that if this order is not quashed,
then the great prejudice would be caused to the complainant
and in the interest of justice, he has prayed to restore the
complaint in its original file.
6. Learned advocate further submits that though the
accused is remained absent for more than 14 years and the
service could not be effected on the address mentioned in the
complaint, however, before this Court the respondent -
accused has received the notice on the same address and had
appeared through an advocate, which shows that the
respondent - accused was evading the service of notice
though he is having the knowledge with regard to the
pendency of the proceedings. In the view of the above,
learned advocate submits that the impugned order deserves to
be quashed and set aside and the complaint requires to be
restored to its original file. Learned advocate further submits
that the complainant would undertake that no unnecessary
adjournment would be sought and it would be concluded
without any further delay as the matter is pending since the
year 2004.
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7. On the other-hand, Ms. Meena Vyas, learned advocate
for the respondent no.1 - accused submits that because of
non-service of the summons, the case was sent to the dormant
file and it is the duty of the complainant to see that notice of
summons was served to the respondent - accused and if he
committed default in the same, then the learned trial court
would not have any other option except to dismiss the
complaint for non-prosecution. Learned advocate further
submits that from the record it transpires that before
dismissing the complaint, the notice was issued to the
accused, however, the same was remained unserved as the
address mentioned in the complaint by the complainant was
incorrect. Learned advocate submits that as the correct
address is not provided by the complainant, therefore, the
order passed by the learned trial Court cannot be said to have
passed without giving any opportunity of hearing to the
complainant and therefore, the learned trial Court had rightly
dismissed the complaint by exercising the power under
Section-256 of the Cr.P.C. Therefore, it is prayed that no
interference is required. In view of the above submission, the
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learned advocate submits that the impugned order deserves to
be confirmed and the appeal is required to be dismissed.
8. Before considering the facts of the case, the provision
under which, the order is passed, is required to be
reproduced, which is as under:-
"256. Non- appearance or death of complainant.
(1) If the summons has been issued on complaint, and on
the day appointed for the appearance of the accused, or
any day subsequent thereto to which the hearing may be
adjourned, the complainant does not appear, the
Magistrate shall, notwithstanding anything herein-before
contained, acquit the accused, unless for some reason he
thinks it proper to adjourn the hearing of the case to some
other day: Provided that where the complainant is
represented by a pleader or by the officer conducting the
prosecution or where the Magistrate is of opinion that the
personal attendance of the complainant is not necessary,
the Magistrate may dispense with his attendance and
proceed with the case.
(2) The provisions of sub- section (1) shall, so far as
may be, apply also to cases where the non-
appearance of the complainant is due to his death."
9. From the record, it transpired that the case is pending
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since the year 2004, it was twice transferred to the different
Courts as there was amendment in the territorial jurisdiction
and ultimately, it was tried by the learned 8 th Additional Civil
Judge and Judicial Magistrate First Class. It further transpired
from the record that the notice of summons was though issued
on various occasions, it was remain unserved and therefore,
the matter was sent to the dormant file with observation that
it would be again listed on board on completion of six months
period. It was thereafter listed on 16.10.2021. On that day,
neither the complainant nor his advocate was present and
therefore, the summons was issued to the complainant making
it returnable on 18.12.2021. It is observed in the rojkam that
on 18.12.2021, the summons remained unserved as the
address, which was given in the complaint, was incorrect
address and therefore, the order was passed by the learned
trial Court on 29.12.2021 dismissing the complaint for non-
prosecution.
10. This Court is of the view that it is the duty of
complainant that after setting criminal law on motion, he
should see that it is concluded without any delay. This Court is
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conscious of the fact that because of the non remaining
present by the learned advocate, the party should not suffer
having the fair case. In the cases like N.I. Act, it is always
complainant, who is at stake of his money, which ought to
have been paid through cheque. Unfortunately, the cheque in
question was dishonored. Under such circumstances, a
complaint instead of dismissing on technical ground, the
learne Court ought to have adopted the course either to issue
the summons or warrant to the respondent - accused as case
was sent to dormant file because of non-service of the
summons to the accused. One more fact is required to be
noted that the address, which is mentioned in the appeal
memo is the same address, where the complainant had tried
to serve to the respondent-accused before the learned trial
Court. Before the learned trial Court, the same could not be
served, whereas, in the proceedings which is pending before
this Court, the respondent - accused appeared through an
advocate, which shows that the respondent - accused is
intentionally evading the service of summons before the
learned trial Court though having the knowledge of pendency
of proceedings. This Court is of the view that the principle of
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natural justice required that due opportunity is to be given to
the parties to adduce the respective evidence and the
complaint is required to be decided on merits instead of
technical dismissal. As it is on the fault of the complainant not
remaining present before the Court, appropriate cost is
required to be awarded at the time of quashing of the
impugned order.
11. In view of the same, the present appeal deserves to be
allowed. The appellant - complainant is directed to deposit an
amount of Rs.10,000/- towards the cost with the Registry of
this Court within period of two weeks from today. On
depositing the same, the Registry is directed to remit the said
amount in the name of Shishu Gruh, Paldi, Ahmedabad by way
of electronic mode.
12. Resultantly, this appeal is allowed. The judgment and
order dated 29.12.2021 passed below Exh.1 by the learned 8 th
Additional Civil Judge and Judicial Magistrate First Class,
Ahmedabad Rural in Criminal Case No.3115 of 2016 is hereby
quashed and set aside. It is clarified that no any unnecessary
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adjournment would be sought for by any of the parties. Both
the parties would cooperate with the trial and to see that the
matter is concluded without any further delay. Record and
proceedings be sent back to the concerned Court forthwith.
(M. K. THAKKER,J)
A. B. VAGHELA
